Experienced

Posts made in February 2017

The municipality, except for a renegade Deputy Mayor, says the introduction of parking meters in Georgetown, Guyana’s capital city, is a necessary leap into modernization. The Private sector, citizens, and activists call the move inhumane, callous, corrupt and a blight on a struggling economy. This gap between what the City thinks of the initiative and stakeholders’ opinion, is know as a legitimacy gap. It shouldn’t take much brainstorming to recognize that The City Council is in the grip of a legitimacy gap that is widening with each passing day. The failure to properly manage the crisis would have already cost Mayor, Patricia Chase-Green her job in a normal democracy. If the Mayor and her Councillors recognize that a legitimacy gap is a serious threat to their viability, they would act more decisively to bridge the gap. They seem quite comfortable, parked in the quagmire.

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StoneWalling and Counter Protest Add Fuel to the Fire

The only sustainable solution to a crisis forged out of a legitimacy gap is to bridge the gap through informed persuasion. The Council eschewed this approach, instead, hunkering down with some old- fashioned stonewalling, recoiling in secrecy. As speculation spread about what is contained in the heavily guarded contract, the issue developed into a wicked problem. The City has allowed opponents of the project to spin the issue out of control. The project is now ensnared in legal action and protest that resulted in its suspension.

Stonewalling and counter-protesting might be useful strategies in some circumstances but when there is a legitimacy gap, they are not helpful. More meaningful engagement was needed to bridge the public opinion gap. The decision to hide behind secrecy and shout down opponents created a crisis of trust and fanned the flames of resistance. Keeping the details of the contract under lock and key is a blunder that added fuel to the fire. As soon as signs of uneasiness with the terms of the contract emerged, the City should have addressed issues pertaining to the terms of the contract with clarity, consistency and transparency.

It is not too late for Mayor Chase-Green and her Council to recognize that a legitimacy gap is created by differences in facts, values, or policy. Some times if you fill the information vacuum the problem goes away. The Mayor allowed her opponents to fill the information vacuum she created, with what she calls misinformation while she recoils in secrecy. She blames her renegade Deputy Mayor for the confusion, but the Council created and nurtured the ideal condition for a misinformation campaign to undermine its effort.

The parking meter issue emerged in mid 2016, not as an outright rejection of the introduction of paid parking in the City but rather, there was dissatisfaction with the manner in which the contract was entered into. At this early stage, Mayor Chase-Green could have extinguished the controversy by adopting a more transparent and accountable approach. What the Council did instead, was put the lid on transparency and accountability, deepening the crisis.

Responding to protest with counter-protest is a clear indication of a lack of understanding of the problem. A combative stance doesn’t help to bridge a public opinion gap. It helps to fortify existing public opinion and widens the legitimacy gap rather than create movement towards consensus. The refusal by the Council to have a high level spokesperson present at a public forum held on February 18, 2017 to address public concern, is another indication of the adoption of old-school tactics that are not relevant today, at least not when a legitimacy crisis is brewing. It the failure to apply elementary crisis management principles that has caused the City to park itself in a legitimacy gap.

DUE PROCESS AND THE PRESERVATION OF THE RIGHTS OF THE PEOPLE

When a movement by the people, for the people rises up to challenge Executive excesses, it is important that it pursues its goals without compromising individual rights and guarantees. The inadvertent dismantling of constitutional guarantees could be more detrimental than the impact of a cause that gives birth to a movement.

The suit against the City excludes the company that entered into a public/private partnership and holds the contract with the City. As a party to the contract, Smart City Solutions has a vested interest in the outcome of the litigation and is entitled to constitutional protection of due process. It is therefore, a necessary and indispensable party.

A party is indispensable when his rights are so connected with the claims of the litigants that no order can be made without impairing such rights. Necessary parties are those whose presence, while not indispensable, is essential if the Court is to completely resolve the controversy before it and render complete relief. Should an absent party be necessary or indispensable that party must be joined for the court to have jurisdiction.

Smart City Solutions has a legally protected interest in protecting its property interest in the contract and its investment in the project. Any judgment that substantially impacts the contract would be unenforceable and unconstitutional as against Smart City Solution which is not a party to the action. Anything to the contrary would be an appalling affront to the principle of due process of law which the movement by the people, for the people, should not be championing. Here is a question to consider:

If an injunction or order is issued against the Mayor and City Council could Smart City Solutions which is not a party to the action be held in contempt if it engages in conduct that is contrary to an order or judgment that is not directed to it, in proceedings that it was excluded from?

Failure to CONSIDER the Circumstances of the Time

Unemployment Rate in Georgetown was sky high when coalition government took office. Chart tabulated from official government data

Parking meters will extract fees from a population that is struggling to make ends meet. When the new government took office, unemployment in some of the most affluent areas in Georgetown, was sky-high. Data tabulated from official government records reveal an almost 50 percent unemployment rate in areas such as Tucville, where the Council and the ruling coalition draw solid support. In Queenstown, unemployment was pegged at 44 percent when the Coalition took office.

Mayor Chase-Green is adamant that she is moving the city in the right direction but the introduction of parking meters comes at a time when there seems to be consensus that the economy is struggling. The project could be the straw that breaks the camel’s back for struggling families. It highlights a fundamental flaw in the way the coalition government handled the transition of power from its predecessor. It failed to properly benchmark the state in which it took over the country. Though a series of audits were conducted, the findings were not used to highlight the state of economic fundamentals.

The new government focused on numbers instead of paying attention to the economic fundamentals and key performance indicators. Instead of going beyond the numbers to craft a qualitative message that emphasized weaknesses in the economic fundamentals, it got carried away with campaign rhetoric. Consequently, the government failed to make the case to the people that it assumed the reigns of power under challenging times. It has failed to make the case to its constituency to buckle up for tough times and make a passionate plea for patience in times of challenges. Mere resort to slogans such as “a good life for all” is not enough in tough times. To be effective, elected officials must craft and properly articulate a clear vision for prosperity that resonate with the people.

Under the circumstances, the adoption of a bombastic approach with a top-down communications approach, resulted in the City Council being viewed as insensitive to the plight of the people. This resulted in ridicule of the Mayor. If the Council had effectively marketed a new vision of a prosperous and modernized city, using informed persuasion and collaborative sensemaking, the parking meter project would have been in better shape. The controversy was brewing for almost a year before the implementation of the project, yet the City and its private partner seem to have no crisis management plan. Worse yet, no effective crisis communication strategy has been displayed. They are just parked in a legitimacy gap, waiting to be clamped or perhaps booted by the people.

When a federal appeals court looked beyond the four corners of President Trump’s Executive Order on Immigration, which bans immigrants to the United States from 7 predominantly Muslim countries, it strengthened the pillars of a constitutional democracy. The case reminds citizens of the world that governments don’t enjoy unfettered discretion to infringe individual’s rights and liberties through a mere assertion that national security is at stake. It is a moment for the judicial branch in small democracies to take note of the important role the judiciary plays to tame tyrants on the loose.

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A mere week into his Presidency, his Attorney-General still not confirmed, the President of the United States made a bold and sweeping exercise of executive power. His travel ban tested the boundaries of executive authority. Implementation of his Order resulted in the exclusion and detention of immigrants from a handful of Muslim countries, who sought entry to the U.S. Federal courts came to the rescue of scores of green card holders, visitors, academics and refugees affected by the ban, putting a halt to its implementation. The government made a frantic attempt to reinstate the travel ban but it was denied by a Federal Appeals court. Instead of reinstating the Order, the Court delivered a stinging rebuke.

NO Unfettered Discretion when Individual Rights are Infringed

The government mistakenly believes its action is not subject to judicial review because it has unfettered discretion to exclude classes of aliens from entry into the United States. The administration relies on textually demonstrable language that seems to give the President untrammeled discretion to exclude categories of immigrants from the United States. However, it is well settled that courts review executive discretion for abuse when it abridges individual rights. The chaos at airports when the ban was rolled out, is evidence of the abridgment of particularized, concrete and judicially cognizable individual rights.

In denying Mr. Trump’s request to be permitted to proceed with his exclusion order, the court noted that the government erroneously takes the position that the President’s decisions about immigration cannot be reviewed, even if individual constitutional rights are contravened. This is a fatal error that the government is not likely to overcome. The Executive Order also has no provision for due process and contains religious tests that run afoul of the Constitution.

Bald assertion of National Security Interest not Enough When Individual Rights are trampled

While great deference is usually given to the Executive in cases of national security, mere reference to national security is not enough to shield the government from scrutiny. The court puts it nicely in rebuking the most powerful man in the world. It reminded him that the Constitution of the United States is a law for rulers and people, equally in war and in peace. The Court therefore, rejected the government’s efforts to move forward with the travel ban without providing evidence of a legitimate national security urgency. Reaching back more than 50 years the court invoked a precedent from the U.S. Supreme Court to get the message across to the President of the United States, that the Executive doesn’t have unrestricted freedom of choice simply because a statute deals with foreign affairs.

National defense cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal… It would indeed be ironic if, in the name of national defense, [the court] could sanction the subversion of one of those liberties… which make the defense of the Nation worthwhile.

From time immemorial, the High Court has signaled to overzealous Executives that executive authority should not be viewed as a chisel placed in the hands of the President to chisel away at other fundamental aspects of the Constitution, in a self destructive way. The Constitution is the plank upon which a nation rest so the destruction of it is a threat to the county’s viability. The Court therefore determined that the government cannot merely assert national interest when its actions collide with particularized, concrete and vested individual rights.

The President doesn’t have to wait for completed attacks to protect the U.S. from dangerous immigrants. He can see the deteriorating security situation on the ground, evaluate the intentions and capabilities of the enemy, and then act before the enemy can strike.

The ruling against the Trump administration is NOT inconsistent with the concerns raised by French. Courts have consistently held that when executive action collides with fundamental rights, at minimum, the government must establish some rational or reasonable basis for regulation. The court repeatedly asked the government to establish that nexus and it didn’t. A mere bald assertion of national interest or defense is NOT enough. Courts have also insisted that regulation must be narrowly tailored so that the abridgment of individual liberties is no more than what is required to achieve the legitimate goals of the government. As the bulwark of democracy and liberties the court must ensure that one branch of government is not parasitic to the principles and values a country is founded on.

Trump’s Immigration Stance- A Global Threat Coming to City Near You

JFK Protest of Immigration Ban – Photo Courtesy Dr. Dhanpaul Narine

Immidiately after the attempt to reinstate the travel ban was denied, massive immigration raids were launched in major cities across the United States. Anxiety in immigrant communities is not restricted to Middle Eastern Muslims. Immigrants from everywhere are losing sleep at night and soon societies everywhere will feel the impact of Trump’s aggressive immigration stance when plane loads of deportees start touching down.

Mr. Trump is adamant that he will scrape the bottom of the immigrant barrel and return the trouble makers to their native land. Many of the so-called trouble makers are products of America with little or no ties to the country they will be returning to. Governments that are sitting back thinking Mr. Trump’s immigration stance is a Middle Eastern problem, should brace themselves for the exportation of America’s problems to their shores.

Forwarding thinking regimes should get busy crafting legal and diplomatic strategies to slow the pace at which America will dump its rotten apples upon their shores. Those that are in the habit of accepting deportees without resistance need to begin reassessing that policy and build a resistance movement against Mr. Trump’s aggressive deportation stance.

Rising levels of deportation did not start with President Trump. His predecessor was once dubbed the Deporter-in-Chief. This is a problem that has been lurking for some time and now the global threat is coming to a City near you. Regions such as the Caribbean Community that are bursting at the seams with social problems, should use the occasion to renew push for greater social assistance from the United States.

The world didn’t suddenly get to the point where citizens’ revolt became the order of the day. At the turn of the century dissatisfaction among citizens in every region, reached a staggering level. In 2002, the Pew Research Center found citizens’ dissatisfaction with the state of their country in regions such Europe, Latin America, North America, and Asia, consistently jotted above the 80 percent mark.

Trump’s defeat of his establishment opponent, Hilary Clinton, to become the Leader of the free world is heralded as a paradigm shift in global politics. His controversial Executive Order was resisted by a global movement that saw massive protest in the far corners of the world. The taming of his executive excesses by the judicial branch should echo through democracies across the globe. Constitutional democracies near and far, should look within their national boundaries to tame tyrants on loose and brace for impact of The Donald.

When Guyana’s President David Granger requested a second list of nominees for Chairman of the country’s Elections Commission (GECOM) from the Leader of the Opposition, he extended an olive branch and created a dangerous precedent. The submission of a list of nominees is a one-shot deal. The Constitution does not provide for the submission of a second list. It contains a provision for the President to make a unilateral appointment if a list of “fit and proper” nominees, not unacceptable to the President is not submitted. Mr. Granger found the list submitted to him unacceptable, apparently concluding it does not meet the “fit and proper” constitutional requirement. This should have triggered the provision authorizing the President to move forward and unilaterally appoint a Chairman.

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Misconception and the Olive Branch

There is a misconception that the Constitution provides for a second list to be requested. It gives no such authority or discretion to the President. Take a look at what the Constitution states:

… if the Minority Leader fails to submit a list as provided for, the President shall appoint a person who holds or has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge…

The use of the word “shall” instead of may should NOT be glossed over. When the word Shall is used in legal instruments, it serves as a command that takes away discretion. On the other hand, “may” confers a discretion. If the architects of the Constitution wanted to confer a mere discretion, they would have used the word “may”. They instead inserted a command, which President Granger did NOT follow in this case.

The Constitution gives the President two consecutive options. First, the President is obligated to make a finding on whether the List satisfies the constitutional requirements. If it does, he is obligated to appoint a Chairman from one of the nominees. If the List does NOT satisfy the constitutional requirements, then the Constitution instructs the President to unilaterally appoint a Chairman. There is no provision for the President to rewind the process by requesting a new list. Though this olive branch reflects consideration of the rancid political reality in the country, it is a frolicked departure from the Constitution.

Pandora’s Box: Requesting New List is a mistake

The request for a new list opens a pandora’s box and sets a dangerous precedent. There is now an expectation that if an obnoxious list is submitted by the Opposition Leader, an opportunity would be provided to submit a new list. This could lead to abuse by an Opposition Leader who may use the initial List to test the President and create confusion. Future denial of an opportunity to submit a new list would also cast the sitting President in a bad light. There is also the issue of when the President could invoke the authority to unilaterally appoint a Chairman. If he finds a second list unacceptable is he obligated to request a third?

In light of the political climate in the country, President Granger’s hesitance to invoke the power to unilaterally appoint a Chairman is commendable but his approach is imprudent. Instead of rejecting the List and requesting a new one, the President should have offered the Opposition Leader an opportunity to withdraw the list and submit a new one. The withdrawal would have forestalled the constitutional command to unilaterally appoint a Chairman by putting on hold, the rejection of the list. In this way Mr. Granger would have achieved the goal of extending an olive branch and demonstrating good faith and awareness of the political sensitivity of the matter without acting in contravention of the Constitution. Failure by the Opposition Leader to accept the offer should have then resulted in a rejection of the List and unilateral action by the President.

The olive branch could have been a strategic play that puts the Opposition Leader on defense and keeps the focus on the quality of the list he submitted. It was an opportunity for the President to control the narrative. Instead, he is allowing his opponent to frame the issue and influence public opinion. The Opposition Leader has managed to shift atttention from the quality of the list submitted to the Constutionality of the President’s action. His chief legal advocate, Anil Nandlall, has pounced on this opportunity. The former Attorney-General is now making a presumptuous claim without any resistance from the Granger government. Here is what he is asserting in his own words:

“The Constitution speaks only to one list. A list of six names. A list of six names has been submitted, so the constitutional requirement in terms of a list has been met. What the President has rejected are the six names so six new names have to be supplied to be placed on that same list. For the purposes of the proviso which states that in the event that there is no list that the President can act, that Proviso cannot be triggered in this instance because there is a list:”- Anil Nandlall

Mr. Nandlall’s assertion that the President can only act unilaterally if NO list is submitted, is a very poor reading of the Constitution. The triggering condition for unilateral action by the President is failure to submit “a list as provided for“. What is provided for is not just a list of names but rather a list of “fit and proper” nominees, not unacceptable to the President. Nandlall is in La la Land dreaming that the Leader of the Opposition could keep providing names that are unacceptable and the President would be obligated to request new names. It would be prudent for him to advise his client to walk carefully on the olive branch extended to him. In a previous article I outlined why Mr. Nandlall, a fierce legal advocate, is Dancing on Black Ice with his client.

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Herman S. 2/18/2016

2016-05-24T13:35:03+00:00

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